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Addressing a novel issue, the U.S. Court of Appeals for the Fifth Circuit said Sept.
27 that the workers should, however, be allowed to disclose their U visa status anonymously,
at least initially.

The court said “it will likely”
become necessary for the workers to disclose their identities to enable the company
to defend against their individual damages claims if Koch Foods of Mississippi LLC
is found liable to the workers—who have the backing of co-plaintiff EEOC—as a group
during the first phase of the proposed class action.

The U visa program was created by Congress in 2000. Under the program, victims of
sexual assault and similar offenses who assist in government investigations into the
misconduct—and their families—may be awarded nonimmigrant status for up to four years.
Government agencies must keep confidential a person’s role in such investigations.

Koch Foods seeks discovery of the information from Maria Cazorla and other employees
suing the company under federal and state anti-discrimination laws because, it argues,
they fabricated their allegations of sexual-, racial- and national origin-based harassment
to seek U visa status.

Information regarding whether the workers have applied for or been granted or denied
U visas is relevant to Koch Foods’ contention that some of them might have invented
or embellished their allegations in an effort to obtain lawful status under the Immigration
and Nationality Act, Judge Patrick E. Higginbotham found.

But permitting Koch to discover individual workers’
U visa applications and related information “may have a chilling effect extending
well beyond this case,” he said. He noted the public interest in protecting vulnerable
workers, who fear being fired or reported to immigration authorities if their unlawful
status becomes known to their employer.

Thus, any discovery should balance the parties’
and public’s various interests and, “at a minimum,”
be restricted in a way that protects the individual identities of the workers, unless
it becomes necessary to disclose that information, the Fifth Circuit decided.

EEOC, Immigrant Rights Group Welcome Ruling

The Equal Employment Opportunity Commission lauded the ruling.

“We are pleased that the court gave a close look at these important issues and recognized
the Commission’s concerns. We look forward to returning to the district court,”
the agency’s general counsel, P. David Lopez, said in a statement provided to Bloomberg
BNA Sept. 28.

Leslye E. Orloff, director of the National Immigrant Women’s Advocacy Project, told
Bloomberg BNA that the case could have an impact beyond the employment context and
affect the rights of women who are victims of domestic abuse and other violence.

“We want to make sure that the balancing test is applied in a manner that continues
to protect” the privacy and other interests of domestic and other violent crime victims,
she said Sept. 28. NIWAP filed a joint
amicus brief in the case with LatinoJustice PRLDEF and Legal Momentum.

Case Remanded to Lower Court

The decision comes on review of a lower court’s order requiring those Hispanic workers
who have sued Koch Foods individually, and others who are just part of the potential
class of workers on whose behalf the EEOC is suing, to disclose whether they’ve applied
for or been granted or denied U visas or other immigration benefits relating to the
alleged discrimination.

The appeals court said it agreed “with most of the district court’s careful consideration
of the sensitive issues presented.” But in remanding the case for the lower court
to reset the workers’ discovery obligations, the Fifth Circuit found that the lower
court “did not address how U visa litigation might intimidate individuals outside
this litigation.” Any intimidating effects from this case could compromise the U visa
program and the efforts of law enforcement authorities more broadly, the appeals court
said.

“Thousands apply for U visas each year, and they do so with the assurance that federal
authorities will keep their applications confidential,” Higginbotham wrote.

That confidentiality requirement—which is set forth in 8 U.S.C. § 1367 and INA regulations and applies to the EEOC—is why the district court was correct
that the job rights enforcement agency can’t likewise be forced to provide Koch Foods
with information about the workers’ U visa status, the court added. That is so, despite
the agency’s role in certifying to the U.S. Customs and Immigration Service that a
U visa applicant is aiding and abetting an EEOC investigation, the court said.

Koch contends that the EEOC solicited false claims from Hispanic workers in an effort
“to build a high-profile, class-based discrimination suit against the company,” the
court noted.

In remanding the case to the U.S. District Court for the Southern District of Mississippi,
the Fifth Circuit said the lower court must reconsider its discovery order and be
sure to include public and law enforcement interests in conducting the balancing test
required under Rule 26 of the Federal Rules of Civil Procedure. That test typically
requires comparing the hardship of permitting discovery on the party from whom it
is sought against the probative value of the information to the party seeking it,
the appeals court said.

If federal agencies “cannot credibly assure potential U visa seekers that their sensitive
information will be kept private, they may become much less able to use the program
to solicit cooperation from those most in need of their help. Protective orders will
not necessarily reassure potential claimants” Higginbotham wrote.

But the lower court should shield the Hispanic workers’ identities from disclosure
at least through the first, liability phase of the EEOC’s case, the appeals court
instructed. “However, if the trier of fact determines that Koch is liable to the complainants,
then it will likely be necessary to de-anonymize the U visa application discovery
for the purpose of proceeding with individual damages determinations, as proof in
that regard necessarily must be individualized,”
it said.

Ruling on Remand Could Have Broad Impact

Orloff, who’s also an adjunct professor at American University’s Washington College
of Law, is “an expert on the confidentiality issue.” She explained that the confidentiality
concerns recognized by the court have their origins in the Violence Against Women
Act.

The significance of the Fifth Circuit’s ruling “is that it recognizes the importance
of confidentiality to protecting victims” of violence, she said. The challenge for
the lower court on remand, she said, is whether it will be able to fully consider
all of the potential impacts of how it crafts its discovery order.

The lower court “could set a precedent that applies outside the workplace context,”
which, if not careful, could enable perpetrators of violence against women to obtain
information from their victims, Orloff said.

That “poses dangers to the victims and undermines the ability to hold perpetrators
accountable in all contexts,”
she said.

Orloff said she believes that under the Fifth Circuit’s ruling, the lower court will
have to conduct a second balancing test if it becomes necessary to consider the workers’
individual damages claims.

EEOC’s, Individual Claims Consolidated

Some of the workers
sued Koch Foods in March 2010 under the Civil Rights Act of 1866 (42 U.S.C. §
1981) and Mississippi law. The EEOC filed a
separate suit in June 2011 under Title VII of the 1964 Civil Rights Act, and the district court
later consolidated the two cases.

According to the EEOC and the workers, some 85 Hispanic workers in the debone department
of Koch’s plant in Morton, Miss., were routinely subjected to abuse by supervisors.

Most of the workers were illiterate and spoke little or no English, and “many were
undocumented aliens,”
the Fifth Circuit said.

The alleged abuse included offering female workers money in exchange for sex, making
racist and sexist remarks, requiring the workers to pay for permission to take bathroom
breaks and sick leave, and sexual and other physical assaults.

Koch managers allegedly ignored the workers’
complaints about the mistreatment and threatened to dock their pay, demote them and
to have them arrested and deported, Higginbotham recounted.

Neither the company nor its attorneys responded Sept. 28 to Bloomberg BNA’s request
for comment.

Arnold & Porter LLP in Washington and Houston;
LatinoJustice PRLDEF in New York; Procopio, Cory, Hargreaves &
Savitch LLP in Austin, Texas, and San Diego; and Legal Momentum in New York also represented
NIWAP, LatinoJustice and Legal Momentum. The National Labor Relations Board in Washington
represented the board as amicus curiae supporting the EEOC and individual plaintiffs.

To contact the reporter on this story: Patrick Dorrian in Washington at
pdorrian@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at
smcgolrick@bna.com

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